Advisory Opinions - Colorado Court Blocks Trump from '24 Ballot. Now What?

Episode Date: December 20, 2023

In this emergency pod, Sarah and David discuss the Colorado Supreme Court’s decision to disqualify Donald Trump from the state’s primary and general election ballots. They take listeners through: —How they speed read court opinions; —The self-execution of Section 3 of the 14th Amendment; —The concept of non-justiciability (and how to pronounce it); —Problems with congressional drafting; —Debating incitement; and —What will SCOTUS do? Show Notes: -Prof. Will Baude on Section 3, Insurrection, and Trump -Coup de Target -Incitement of Insurrection Learn more about your ad choices. Visit megaphone.fm/adchoices

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Kind of. We are actually recording at our same time. But nevertheless, we're having to ditch our previous plans once again. You know, there were complaints in the comments section, David, that we were becoming too on the news, not legally nerdy enough. And I was like, no, no, no. We have these circuit opinions we're going to dive into for the next episode. And then the Colorado Supreme Court happened. So that's what we're going to do. We should zig when everyone expects us to zag. You wanted nerdiness.

All right. Let's start talking about Judge Newsom's concurrence to his own opinion and the McDonnell Douglas case involving burden shifting and Title VII. Go, let's go. Yeah, okay. Look, I want to provide an outline of how we're going to talk about the Colorado Supreme Court case. I also, we're going to put in the show notes several episodes that if you do want a deeper dive on any individual part of this,

we've done a lot already on the 14th Amendment, Section 3. So first, let me just give the dates of those episodes. You can find them in the show notes. But again, here are the dates. So on October 3rd, 2023, we had an amazing conversation with Professor Will Bode of the University of Chicago, really walking through his law review article where he said that Donald Trump was disqualified. So in a sense, siding with the Colorado Supreme Court, we sort of walk him through his paces on the officer of the United States language. So if that's something you want to hear more about, October 3rd, 2023. We also have a shorter interview on October 22nd, 2023 with Professor

Michael McConnell, in which he says Trump is not disqualified based on his Wall Street Journal op-ed. And then January 11th, 2021, David and I got into it on incitement and whether we thought Donald Trump's statements. I mean, this was five days after January 6th, David. I sort of am reeling when I saw the date of this. We discuss incitement and the Brandenburg test. David comes out thinking, yeah, this probably qualifies as excitement, incitement. Definitely excitement. I come out the other way and say probably not incitement under that Brandenburg test. Okay, so what are we going to do today? A little bit of everything. This is a 213 page

opinion, including dissents. So I want to start with how I read opinions like this, just for those who are non lawyers, or even for some of the lawyers who don't have to do this for a living. Then we'll talk about the Colorado Supreme Court, just the makeup, how they get there, etc. Then we're going to talk some state law, which the Supreme Court is not going to be reviewing, but it's the real focus of some of the dissents here. And it's worth just a second of your time. Then non-justiciability. That's that political question doctrine of sorts. We haven't talked a lot about it, David,

and I think it's worth some time here today. The self-execution part of Section 3, also something that we have not spent a lot of time talking about. We're going to spend more time on that today. We're going to spend less time, but we'll tell you what they said on why they thought it met the officer of the United States provision

and the incitement provision. And of course, we're going to have to go through the dissents as well. All right, that's our outline. So, David, I just wanted to, we've never talked about how we read opinions when like something comes out at 7pm and it's 213 pages, and we've got, you know, basically 12 hours to read it and sleep. How you do it. And this is true for me, even with most Supreme Court opinions. I'll be curious if the legal commenters out there or the judges will be angry with me for my methodology here. I start with the dissent, usually, and then I go see if I think the majority can overcome the dissent's good arguments. Oh, interesting. I thought you were going to talk about how you scan 212 pages

when you can't like legitimately sit down and read them as carefully as you would as if you were preparing for a law school exam in the short amount of time. But this helps with that too, right? Because if the dissent's gonna pick out, they're not gonna, they didn't take on everything. They picked out a few things. So then you can really go focus on the things the dissent says and see if the majority has good answers to those things.

Yeah, that's a good approach. My approach is I, there's a lot of legal opinions that include language that is kind of boilerplate. So I will often kind of scan really fast or even skips on the boilerplate. So for example, standard of review, there are a lot of opinions have a long section of standard of review. I will often, once you get like the first couple of sentences where you know what standard of review they're applying, you don't need to read all the site checking. A lot of the procedural history, unless the procedural history was dispositive to the case, for example, you know, a way in which, you know, discovery failures could have led to a default

judgment or something like that. A lot of the procedural history, you just sort of sweep past that. And so you really are trying to get to what's the actual core holding, what's the actual core reasoning as quickly as possible. And this is a learned skill. I remember when I was early in law school, I could not read literally, Sarah, more than 10 pages of legal text in an hour. Yeah, totally. I think that was about where I was. Yeah. It just, I didn't know what you, what was important, what was not important. And then over time you can actually start to read them more quickly, much more quickly because you get a sense of where, you know, where the heart of them, what's the heart of the matter. All right. Check how to read opinions. Next, the Colorado Supreme Court. So this is a seven person court. This decision was 4-3, which I don't think has gotten a lot of attention out there. I don't see a lot of people noting how close this was.

Interesting method to get justices. Basically, when there's an opening, the governor gets to appoint a justice. And then two years later, that justice stands for a retention election. Literally nobody has ever lost their retention election. And then they serve a 10-year term. So because Colorado has had Democratic governors now for a long time,

all of seven of these justices were appointed by Democratic governors. Hickenlooper, Ritter, and Polis are the three governors who've appointed. So yes, the four justices in the majority were all appointed by Democrats, but so were the three dissenters. And it actually kind of makes this more interesting to me, David, because we can take the politics just right out of the whole thing, at least the obvious electoral, you know, that X axis politics. The chief justice was one of the dissenters, as well as, and again, I'm so sorry that I'm maybe not going to get these names right, Justice Samore and Justice Birkencotter. There's something else to note on the difference

between the three dissenters versus the four in the majority, David. And I don't quite know what to make of this, but I'm going to tell you anyway. Okay. So we know what law schools everyone went to. And of the four in the majority, they went to Yale, Virginia, Penn, and Harvard. Okay.

None of which are located in the state of Colorado, in case someone was curious. The three dissenters all went to the same law school. They all went to the University of Denver. Interesting. Yeah. Again, it's not that I'm trying to make some huge thing out of this. I'm sure, you know, it doesn't make much of a difference.

But considering that I'm going to disagree with the majority here, and I agree with the dissenters, there's definitely some line about how like, you know, what's that line that like only Ivy League graduates could learn something so stupid. They're like, yeah, maybe maybe they were a little too in their heads on this one. So but they're not elected justices either. Note that they are really appointed. The fact that nobody has ever lost their retention election, I mean, it's as close really to the U.S. Supreme Court method of choosing justices as you're going to get

without being exactly the same. So, 4-3 opinion. Now, transitioning to the next one. David, we talked about this a little with Judge Newsom, I believe, just to sort of do this quasi-eerie railroad thing. The U.S. Supreme Court decides questions of federal law. It does not decide questions of state law. Right.

So when we talk about some of the state law elements of this case, including all three dissenters, basically pretty angry about their reading on state law, the U.S. Supreme Court has to go with the majority of the Colorado Supreme Court on a question of Colorado state law. So I do think it's worth talking about, but it's not part of what's going to get reviewed. The Supreme Court can't kick it by saying like, ah, the dissenters were right and they misinterpreted, the majority misinterpreted this provision of state election code. Yeah. And that's why I think spending a lot of time on state election code is not going to be

very worthwhile because that's done. That's settled. That's decided. People should sort of know what the reasoning was, but that's done. That's over. Fine. Then let me just say it really quick. Section 11113 of Colorado State Election Code basically has an expedited process for determining whether someone is eligible to be on the ballot. And it specifically references the qualifications in Article 2. For those who are remembering, that's like, you know, your age, your natural born citizenship-y stuff. But then it also is kind of a catch-all later that's like, and this is all to comply with federal law. So a few things here. One, this expedited process means that there really wasn't a lot of process here at all. In fact, it was, they didn't even

follow the correct process. It was supposed to be a lot more expedited. They're supposed to basically have five days to do this. And instead, it took about two months. And they note that, of course, from a due process standpoint, which, by the way, the Supreme Court could weigh in if we thought this violated the federal due process clause. But I don't think it does. From a due process standpoint, the people suing to keep Trump off the ballot, they didn't have any problem on due process because they got to file this whenever they wanted. They got all the preparation time in the world. But Donald Trump's team, of course, was at the mercy of this timetable laid out in this expedited process. So there's that due process problem. And then there's, you know, there's no subpoenas, there's no testimony, there's no like, you basically just like went

off news reports, and etc, on like, what happened on January 6. And that maybe there's a due process problem with that. But as you said, David, we probably don't need to spend a lot of time on that. It is worth noting that all three dissenters really harped on the due process aspect of this and potentially the misreading of Section 11113. The argument being, A, it probably doesn't even cover reviewing Section 3 of the 14th Amendment. Even if it does, in theory, the expedited process wasn't even followed, which shows you this was really just meant to be sort of like easy stuff. So they argue this due process point, but they also say, look, this section doesn't even cover what we're talking about. It probably doesn't cover Article 3, Section 3, sorry, of the 14th Amendment. And you know that because of the expedited

procedures, it was supposed to be easy stuff that was just sort of like evidentiary, quantitative, what year were you born in, not having to have an entire hearing, which they didn't have here, over whether what's an insurrection, what's the Brandenburg test, what's the law here, and applying that sort of unclear federal law, whether it's self-executing. I mean, really, the whole reason why we have a 213-page opinion, they say, proves the point that this expedited process in Colorado state law was never supposed to do this. You know, Sarah, I found that the most persuasive part of the dissent by a pretty long shot, like the actual Colorado. And at the same time, as I'm reading it, I'm thinking I'm also really super not qualified. True. Because this is this is a matter of Colorado state statute, Colorado state election law. That, you know, with a lot of these state election statutes, there's just an ocean of

precedent behind them. There are lawyers who who do this for a living or close to it. And this is one where really, literally, I'm coming in, in many ways, just like, you know, all our listeners who are not Colorado attorneys. I'm both reading, I'm learning the law and evaluating the arguments at the same time. And that is, but I did find the dissent really quite persuasive on this point. But as we said, it's done. However, there is a part, Sarah, that is very, very, very interesting to me. And it was this First Amendment argument that essentially says, look, if we're talking about a primary ballot, who the GOP puts on its primary ballot is the GOP's business. And yeah. Yeah. So there's this associational

problem. That's so funny because I was going to get to that next and I didn't even put it in the outline that I showed you. Because I think a lot of people are probably wondering, wait, why is this a qualification question for the GOP primary ballot? They can nominate whoever they want. They're a private organization. Which leads us to a part of the law that's probably not correct, but that we've all kind of accepted because it was pretty important to have it at a certain point in U.S. history. at a certain point in U.S. history, which is we've decided that because the parties basically use their primary system to discriminate on the basis of race, like, oh, sure, you can vote in the general election, but you can't vote in the primary election because associational rights,

you know, if you're not white. And by the way, the only two candidates who are going to be in the general election are the two major party candidates, which basically de facto meant that you didn't have the right to vote in many of these places where it's one party rule anyway. So we said the primaries were de facto state action and were then going to be de facto held to state and federal law. But here you kind of run in to the problem with that decision. It felt really good at the time. I mean, I wasn't alive. I'm sure you were. You were already like 50 years old. But yes. Yeah. Yeah. I had my AARP card at that point. Yeah. But the idea that these aren't private organizations when they are. This is the problem. Right. It's you know, it's a primary election is a quasi public private exercise. So

you're you do have it's a private organization. The Republican Party is a quasi-public-private exercise. So you do have, it's a private organization. The Republican Party is a private organization that's deciding its nominee to put forward for a general election under, and so there is a wide degree of latitude. You can go through case after case after case showing a wide degree of latitude in deferring to party rules

when it comes to party eligibility, such as, for example, I believe here, if you're going to be a candidate in a primary, you have to have voted in three of the last four Republican primary elections yourself. So that's a rule, that's a GOP rule, and the courts are generally hands off about this, or where you can live if you're going to run for a primary, things like that. And the courts will generally stay hands off, but not entirely. Remember on the DNC side, the superdelegates, how the eventual nominee is actually selected, also up to the parties themselves. Yeah, exactly. So the line of, here is a purely private party approach versus here's where the state interest is so

strong that we step in is blurry, is blurry. So, Sarah, you are articulating one example where the state had to step in, and that is when these private parties engaged in grotesque racial discrimination for eligibility to be on the ballot. that's when the state stepped in. But when it is a private party saying you have to vote it in GOP primaries recently, the courts aren't going to step in with that. So it's not exactly that these primaries are now, because of the civil rights violations of the past, are under federal supervision. It's a quasi-public-private kind of enterprise where the private interest trumps sometimes and the public interest trumps sometimes. Listen closely as a master painter carefully brushes Benjamin Moore Regal Select down the

seam of the wall. It's like poetry in motion. Benjamin Moore, see the love. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame.

This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, I'm going to run through now each of the points that the majority of the Colorado Supreme Court decided, and I'm just going to read from there, so that way you listeners sort of know point by point, even if you don't want to listen to the

rest of this podcast. I also think it's worth remembering that this is a little like nationwide injunctions. This lawsuit, versions of it, have now been decided in at least three different courts. Georgia, North Carolina and Minnesota have all looked at it. All three of those voted the other way, right? They did not keep someone off the ballot. Now in the North Carolina one, there was a mootness issue. I get it. But look, the point is,

similar to a nationwide injunction, you can lose in 300 district courts, but all you have to do is win one. And it feels a lot like what's happened here. You know, court after court saw this and was like, no, for whatever, you know, they all had kind of different reasons that the Section 3 of

the 14th Amendment was not going to prohibit a person from getting on the ballot this time. And all it takes is one. And now we're off to this like constitutional crisis. So I want to read their reasons because I will say, look, they took this very seriously. It's this, there's not a flippant line in this whole thing. Right. I think everyone came to this with good faith. So we will treat it as such. Number one, the election code allows the electors to challenge President Trump's status as a qualified candidate based on Section 3. This is more of that really the state election code argument. Indeed, the election code provides the electors their only viable means of litigating whether President Trump is disqualified from holding office under Section 3. Two, Congress does not need to pass

implementing legislation for Section 3's disqualification provision to attach, and Section 3 is, in that sense, self-executing. Three, judicial review of President Trump's eligibility for office under Section 3 is not precluded by the political question doctrine. Four, Section 3 encompasses the office of the presidency and someone who has taken an oath as president. On this point, the district court committed reversible error. Next, the district court did not abuse its discretion in admitting portions of Congress's January 6th report into evidence at trial. Next, the district court did not err in concluding that the events at the U.S. Capitol on January 6th constituted a, quote, insurrection. Next, the district court did not err in concluding that President Trump engaged in that insurrection through his personal actions. And finally, President Trump's speech inciting the crowd that breached the U.S. Capitol on January 6th

was not protected by the First Amendment. Okay, let's start at the top here. Yeah. Self-execution, David. I think the majority here is plainly right on this point. The reality is, if you're looking at the sections of the 14th Amendment, it is not the rule, for example, that Congress has to enact legislation to make equal protection applicable. Congress does not have to pass legislation to impose due process requirements on government. And in fact, if you look at the language of Section 3 itself, it's basically applicable on its face unless Congress says it's not. So the amendment is saying, look, unless Congress says it's not. So the amendment is saying,

look, you shall not serve, but Congress can remove the disability. So it says no person shall, which is mandatory language. And then at the very end, but Congress may, by a vote of two thirds, remove such disability. So on the face of the statute, I mean, of the

constitutional provision of the section, it is imposing an obligation that Congress by vote may remove. It is not saying here is an obligation that Congress may impose and then may remove. No, the section imposes the obligation and then Congress has the opportunity to remove it. So that's my, and I thought that was a very, and also a very effective way, I thought, of talking about what self-execution means because there's been sort of a lot of confusion about that. And they've defined it in a way

that I think is pretty easy to understand that essentially means this provision is operative without Congress taking any action one way or the other. It's operative on its own and therefore enforceable in court. And I think there's been a lot of confusion about what self-execution means. So that's my perspective on it. And I thought they did a very effective way, did very effectively articulated why section three should be read in harmony with other substantive sections of the 14th Amendment.

That's just, that's my thought on it, Sarah. And now I'll tell listeners why you're wrong. So I think this is a much, much closer call than I've been giving it credit for. You know, we didn't talk about it really at all with Boat. I just said, like, let's assume that's true and move on. In fairness, it's because I knew I wanted, like, it's more fun to spend an hour talking about three words, frankly, than it is like bopping through too many things quickly. I'm like the

opposite of probably all our listeners, actually. So this is really worth some time. I'm going to read from one of the dissents. My colleagues in the majority turn Section 3 on its head and hold that it licenses states to supersede the federal government. Respectfully, they have it backwards because no federal legislation currently exists to power Section 3 and propel it into action because President Trump has not been charged under Section 2383, which actually does criminalize insurrection. And because there is absolutely no authority permitting Colorado state courts to use Colorado's election code as an engine to provide the necessary thrust to effectuate Section 3, I respectfully dissent. Look, here's most of the argument, right?

Here's most of the argument, right? The 14th Amendment is ratified in 1868. In 1870, they actually do pass a law, a remove someone from office who had violated Section 3 of the 14th Amendment. It also had a criminal provision if you hold office, like knowingly in violation of Section 3 of the 14th Amendment. Interestingly, that quo warranto, the prosecutor being able to remove someone from office, gets repealed in 1948. So that doesn't exist anymore. And it's why the majority is saying that this was the only vehicle, really, for the Colorado electors to bring this because that quo warranto provision doesn't exist anymore. Fair enough. But that doesn't mean you can just go like guns a blazing and find whatever you want. Fair enough, but that doesn't mean you can just go like guns a-blazin' and find whatever you want. The fact that Section 3 itself doesn't say that Congress has to enact legislation, I don't find persuasive at all.

So Section 5 of the 14th Amendment says, The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. So basically, like article or section five is really clear that it's not meant to be included in every single one. It says the provisions of this article, meaning now this applies to every section. So we just didn't put it at the end of each section. So you basically can read section three, you know, but Congress may by a vote of two-thirds of each House, remove such disability. The Congress shall have the power to enforce by appropriate legislation the provision of this article. I'm not saying this is clear-cut, but over and over

again, we're going to find that each question in this case is not clear- cut. And at what point do we say, okay, then we don't take some huge constitutionally shaking step. So Sarah, let me ask you a question. So let's read section one or the end of section one. No state shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of laws, the Congress shall have the power to enforce by appropriate legislation the provisions of this article. Right. So would your position be that in Section 1, that you don't have equal protection, nor

the due process protections, nor privileges or immunities without congressional action? So here's what I think is interesting about that. When we think about the vast, vast majority of cases, we're actually looking at a state law that is then voided because it violates section one of the 14th amendment. So no, you didn't need Congress to enact anything because we're actually looking at

whether the state law complies with it. Does that make sense of why that's different to me? And I'm trying to think of an example where you're trying to enforce 14th Amendment Section 1 against someone without any legislation. Like the question... Oh, all the time. I mean, when states just take action. So, for example, when you deny a... When you deny, let's just take a first, a standard First Amendment case in the U.S. is a 14th Amendment case and a First Amendment case. So it's the First Amendment provides the substantive legal grounding. The 14th Amendment is what makes it applicable to the states. And so if you have, say, for example, a professor

fired for his political point of view, there's no legislation. There is state action, of course, that is the firing. But you don't have to have I don't have to go back and point to a statute that gives the professor the substantive constitutional right. The substantive constitutional right exists. And now a statute can provide a clause. That's a little hard because the substantive constitutional right is the First Amendment, right? Like that's the free speech clause. I understand that it's applied to the states through the 14th Amendment. But I can't even sue unless it's applied to the,

unless I have the 14th Amendment. True. No, totally true. I mean, I just I see a couple differences there, right? Like it's still working as like a bulwark against something versus an affirmative. Well, I mean, this is working as a bulwark against somebody running for office who's an insurrectionist. I mean, it's the shall language. It's you have the show. I mean, I guess that here it

would be this. The state action is them putting him on the ballot. And that's what you're. Oh, sorry. I don't think I see that. I take your point that section one. I just don't get how you get from shall, which is mandatory language. And then the amendment itself then gives Congress their section itself gives Congress the ability to remove the disability. But saying that they can remove the disability means the disability exists. It's pre-existing. It is an existent state, is this disability. And the way we've always interpreted Section 5 in the past is essentially, it kind of makes the 14th Amendment in many ways almost a super amendment because it gives Congress the state interest in amplifying and extending the reach of this amendment.

Look, I agree with that textually. I think you've got a great argument in just that the Congress shall have the power to enforce, not must enforce. have the power to enforce, not must enforce, not it doesn't like I actually do agree with that. But then you just end up back a little bit where you started for me, which is OK, but if it doesn't. If it's not clear, then what we're doing, like, for instance, the person hasn't been convicted of insurrection, it's not clear to me that Section three can act on its own. Congress has the power to enforce that provision if it's not being enforced. But there's no requirement of a conviction of insurrection in the actual text itself. And there's a good reason for that, by the way, because, for example, we had

immense numbers of Confederate officers at the end of the war, and we did not try them all. In fact, there was a conscious decision not to impose the kind of victor's justice that normally exists in the 19th century when you launched an insurrection against your own government. That was, in the 19th century, you lose an insurrection, you swing, you hang. And so the mercy here was very,

especially by the standard of the time, extreme amounts of mercy to defeated Confederates with some caveats. And one was, if you were participating in this, you can't serve. And there is a really good reason for not having a requirement of a conviction, and that is we weren't gonna try 70, how many remaining people were under arms alive and well or wounded and recovered? Hundreds of thousands of people. And so the question was essentially, and easier much then, much easier then because people wore uniforms and they had units

and I was a major in the 3rd Tennessee Cavalry. But there's no, it's obvious why there was no requirement for a conviction when you look at the history of the amendment. Well, except that insurrection and rebellion had clearly already been applied to the Civil War legally. So yeah, a conviction becomes way less important because we don't need a legal process to determine insurrection or rebellion. We might need a process to determine whether you engaged in it, but that would maybe be easy by virtue of you having, you know, worn the uniform of the Confederacy, which in this case is what the

vast majority, in fact, all of the people I think we're talking about did. So it wasn't, it wasn't really a fact question at that point. Let me run through a all of the people I think we're talking about did. So it wasn't really a fact question at that point. Let me run through a few of the arguments of the dissent. One, again, is that, again, literally called the Enforcement Act of 1870. They did know that they could do this, right? It says the Congress shall have the power to enforce. And then they pass something called the Enforcement Act. I'm going to read here a little bit. The Enforcement Act contained two provisions for the specific purpose of enforcing Section 3. The first provided that quo warranto mechanism I mentioned. A federal district attorney could bring a civil suit in

federal court to remove from office a person who was disqualified. The second permitted a criminal prosecution for knowingly accepting or holding office in violation of section three and included punishment by imprisonment of not more than a year, a fine of not more than a thousand dollars or both and disqualification from holding office. That's pretty important, So they do statutorize the Section 3. And that provision still exists in law. So you could charge Donald Trump under that section for running for president if you wanted to and get a conviction. And then he'd clearly be disqualified from holding office. But they didn't do that route.

The enforcement purpose behind the act was evident in the congressional debates held on these very two provisions. Senator Lyman Trumbull stated, but notwithstanding that constitutional provision, we know that hundreds of men are holding office who are disqualified by the Constitution. And then he says, the Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution. He reiterates the point later, some statute is certainly necessary to enforce the constitutional provision. The debate on the floor focused not on whether the provisions were necessary for enforcing Section 3, that seemed to be accepted as a foregone conclusion, but instead on whether the provisions were necessary for enforcing Section 3, that seemed to be accepted as a foregone conclusion, but instead on whether the second provision and its attendant punishment

were necessary. The need for the first provision was so self-evident that it was not even debated. As Senator Garrett Davis put it, the first provision simply provided an adequate remedy to prevent any of the criminals under the 14th Amendment of the Constitution from holding office in defiance of its letter. There's that. There's also this case, which we didn't, again, we mentioned with Will Bode, but we didn't talk a lot about. And this is Griffin's case. Right. And remember, David, we mentioned it to listeners.

Guy holds office as whatever he did. He'd definitely taken the oath. State legislator, I think. Then he joins the Confederacy. Then after the war, he becomes a justice of the peace, a judge of some kind in the state. And he convicts our Mr. Griffin here of whatever crime. And Griffin collaterally attacks the conviction saying he didn't have the authority to hear this case. He was disqualified under Section 3 of the 14th Amendment. So my conviction's void because this guy wasn't a judge at the time that he decided this case. Chief Justice Samuel Chase

was like, he nod-dogged it. Yeah. So that's like two very contemporary things. One, you have many members of Congress who believe that it's not self-executing and passed the Enforcement Act of 1870. And you have the Chief Justice of the Supreme Court. Now, he was writing circuit. That's why we are only saying the chief justice, not the majority of the Supreme Court. Right. Which makes us a little messier. So it's not Supreme Court precedent. And it was not Supreme Court precedent. And it wasn't binding on the Colorado Supreme Court. Also true. Yes. But it goes to the original understanding of whether it was self-executing. Yeah. And, you know, again, going back to the other provisions of the 14th Amendment,

we have a lot of congressional enactments that are amplifying and executing on the 14th Amendment. So, for example, the civil rights statutes, you know, you go back and you look at, say, the preamble of Title VII and you're going to see that part of the Civil Rights Actions statutes were empowered by the Civil War amendments. And so, but nobody thinks that the Civil Rights statutes, for example, are the totality of the enforcement of the 14th Amendment, Section 1. And so, or whatever federal statutory scheme is the entirety of the enforcement mechanism for Section 1. So yeah, Sarah, I think,

though you do raise a really interesting point that I think we'll probably get to if we have time, which is if you have credible arguments contrary to sort of each point, at what point does sort of each point? At what point does sort of like this judicial prudence, restraint mechanism sort of lock in and start to say, okay, these questions point by point by point are arguable.

And so that adds up to, we have a really arguable legal case that then could have really seismic consequences politically. And do we do this? And, you know, Democrats are hopping up and down going, have you ever heard of a little thing called Bush v. Gore? And, you know, we had a Bush v. Gore in the year 2000. It stopped a recount process in its tracks. And, we had a Bush v. Gore in the year 2000. It stopped a recount process in its tracks, and while we had some news organizations who tried to continue it to see how that would have come out, we really don't even know how that would have come out.

Stopped it all in its tracks, and so by the way, the only reason everyone is losing their minds right now is because this decision is being applied against not Al Gore, who is a person, a rule of law bound person who concedes to the rule of law, but it's being applied to a guy who's so dangerous,

you might call him an insurrectionist. And so I think one of the issues here that one of the reasons why people had that sort of puckering up feeling in a way they didn't have 23 years ago is because unlike 23 years ago, we're dealing with an insurrectionist. But anyway, go ahead, Sarah. Look, far be it for me to disagree with that. I think I'm going to come down much more on the pragmatic problems with coming out this way.

Right. going to come down much more on the pragmatic problems with coming out this way. Right. And I'd be reading more from Justice Chase's opinion in Griffin's case, except that, as anyone who's been to law school knows, basically before, I don't know, let's like roughly call it 1890. These cases are pretty indecipherable the way they're written. Oh, gosh. Yeah, it's amazing. I don't know how we were all speaking a different language. Oh, my gosh. But to quote from the Colorado Supreme Court justice in dissent, I extract three seminal and related takeaways from this view of Griffin's case. First, Section 3 is not self-executing, meaning in the judiciary it didn't seem self-executing on top of the legislative history. Second, only Congress can pass the appropriate legislation needed to execute it. And third, this grant of

power to Congress was not merely formalistic, it was also pragmatic. Indeed, it was indicative of the complex nature of the disqualification function. Chief Justice Chase perceived that Section 3 would require an array of mechanisms, procedural, evidentiary, and definitional, to ascertain who was the subject of disqualification and how they could be disqualified. I think that is such an important point. Another reason, just a pragmatic reason, that even if the text is ambiguous, that you should side on the not self-executing side, is it's really unclear how we're supposed to determine any of this. And it really would

have been up to Congress to provide those procedures. What evidence is needed? Do we need to have a conviction, as you said, David? Probably not. But do we need to have some legal finding that the act in question was an insurrection or rebellion? Because that is a legal term. And then definitional. So I think in the end, I think I taught like, I think it's a close call, but I think you're probably right, that the text does not itself require it to be self executing. But I think when you get to the pragmatic arguments, and but and obviously, I don't think legislative history alone gets you there either. So each of those probably lean towards your version, David.

But then I think the pragmatic problems lean towards mine. And you end up with this, and this is a problem in all sorts of legal cases, that is maybe a topic for another AO down the line. What happens when there's, you know, three things that each have to get met, and you meet them each at 51%, but if you multiplied them, you'd be way under the bar. That's sort of where we are in this one. And you meet them each at 51%. But if you multiplied them, you'd be way under the bar. That's sort of where we are in this one. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting.

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No complexity. Like Neutral. Made with just vodka, soda and natural flavour. Neutral. Refreshingly simple. All right, so that's self-executing. Let's talk a little bit about non-justiciability. What's your thoughts on that, David?

And do you want to give a little, like, what non-justiciability is for? Yeah, non-justiciability, number one, has always been very difficult for me to pronounce. And that's what the rest of this podcast will be about. Justiciability. Why did you throw this to me? I've never been able to say the word. I'm like George W. Bush with nuclear. No, I can't say politicization. Politicization. I'm all over politicization. I can't say just just don't worry, guys. We just do a podcast for a living, a legal podcast for a living and can't even say this critical word. So essentially,

justiciability is the question of whether this is a dispute that is susceptible for resolution by the courts. And so, for example, there are a number of disputes that have generally been considered non-justiciable. In other words, this is not where the courts should come into play. One example was, you know, a good example is you don't see this court really weighing in to, say, enjoin a military action. So if the president decides, we have a Operation Prosperity Guardian, what a weird name, anyway, is unfolding in the Red Sea right now,

a bunch of American ships and allied ships are going to be presumably taking action to protect shipping from the Houthi rebels in Yemen. And let's say somebody says, well, where's Congress's action? We're gonna file a a lawsuit in the Supreme, you know, we'll file a lawsuit in federal court, go to the Supreme Court and ask the Supreme Court to order President Biden to stand down because there is no congressional declaration of war against the Houthi rebels. In theory, in theory, you would say, well, wait a minute, if they have clear constitutional provisions that say Congress declares war, why wouldn't that be justiciable? And the court has just sort of said, nah, not, we're not going to get into whether we're

not going to be the final arbiter over war and peace in the United States. That's we're going to leave that to the interplay between Congress and the president. And so it's not evident and obvious on its face from the Constitution that this is a subject that shouldn't be subject to judicial review. But the court in its prudence says we're going to pull away from this. And I think that's really, I use the war analogy here because I think that's a better analogy for this argument because on its face, you know, there's mandatory language right there in the Section 3 of the 14th Amendment, just as there is quite clear language that Congress

declares war, for example. But to me, the justiciability argument is much less, is this a dispute that the Supreme Court can resolve versus the kind of declaration of war sort of dispute that this is the kind that we're going to choose not to resolve? And I think that that's the really interesting justiciability question here. But yeah, that's brief background. I think that's right. I certainly think that the question of whether Colorado can disqualify someone from its ballot is justiciable. Right. Of course it is. Yes. Right. Of course. So in that sense, I don't think you're going to see the Supreme Court saying like, well, not our problem. Like, oh, it is your problem now.

But I think there's almost like a, maybe it's more of a meta justiciability question. And maybe this goes, you know, it's tied in with the self-executing that it provides some weight on one side of that argument or not of the role of the states in doing this alone, so to speak. Like the whole point of the 14th Amendment was to strip the states of power because they had, you know, not behaved well in the run up to the need for the 14th Amendment. So the idea that we then empowered each state to decide who's qualified to be on the ballot seems insane to me. So in that sense, I do think at a state level, they probably should have found that it was not justiciable by them, at least. And again, you can argue that under under the it wasn't self-executing i think that would be almost a version of

non-justiciability it's not self-executing for state uh courts or the state courts could have said um you know this appears to be a federal question to be determined by either Congress or federal courts. But it is at least because it's coming from the 14th Amendment, it would turn on its very head the concept of the 14th Amendment if the point was to empower states to now enforce elections, which was the very problem when they seceded in the first place. Yeah, I think it's justiciable. This is ridiculous. I'm going to see how many times I can make David not say the word. Please, I think it's justiciable. This is ridiculous. I'm going to see how many times I can make David not say the word. Please, please. Let's move on. But I do think the issue is more interesting than when I first thought it through. But I do think it's

justiciable. Okay, now we get to the parts that we've talked about some already. The majority holds that the office of the presidency is an office under the United States. So when you take the oath for the presidency, you are then included in 14th Amendment Section 3. They also held that you are precluded from holding the office of the presidency because the president is an officer of the United States. This is what we got into it with Bode. And if you remember, long story short on the Bode podcast, Bode acknowledges that the best argument against Bode comes from the commissioning clause, Article 2, Section 3, yada yada State of the Union, yada yada time of adjournment. He shall receive ambassadors and other public ministers.

He shall take care that the laws be faithfully executed. And he shall commission all the officers of the United States. Will that be weird to commission yourself? But here it gets to the problem, David, right? There's many mentions of officers of the United States. The majority are pretty ambiguous on whether it includes the president. There's a couple that certainly make it seem like the president is included. And there's a couple that really make it seem like the president isn't included, like this commission one.

I will tell you, it is my only beef with the majority where I actually fault them. They never mentioned the commission clause. They only mentioned the mentions of officer of the United States that help their argument and they don't tackle the ones that hurt their argument. And I you couldn't get away with that as an advocate. You should not be able to get away with it as a justice. Yeah, I you know, to me, this officer argument has been from the beginning, the most interesting aspect of it. I know I think we disagree on the insurrection part.

We might maybe I think we disagree on incitement, but I don't think the actual incitement on January 6th is indispensable to the insurrection part of it. But I'll say this, this is the most interesting to me. And I will give the majority credit for two things. One, it's pretty obvious they listened to our Will Bode podcast, Sarah. It's pretty obvious. No, it isn't, because then they'd have the commission part in there. I know, but part of it, like they must've listened to it on two times speed. Yeah. Then they tuned out at the end. Yeah. And then they tuned out because- Big surprise ending where Boat acknowledges it. Yeah. Okay.

Yeah. So part of our podcast was saying, okay, look, when you are looking at a section of law, the general rule is you're gonna apply the ordinary meaning of words in the absence of a specific and specialized definition. And in statutory law, when we're not applying ordinary and obvious meaning of words, it's obvious when that occurs

because they'll have a definition section. Here's what these words mean in the context of this section. And so what they're saying here is, look, we just gotta apply the ordinary and obvious meaning of these words mean in the context of this section. And so what they're saying here is, look, we just got to apply the ordinary and obvious meaning of these words. The amendment itself does not specially define these

in a unique term of art kind of way. They're applying ordinary and obvious meaning and under ordinary and obvious meaning, come on, right? They're an officer. Now, the other thing that they said, which I think was a really interesting approach to it, is they said, wait a minute, if you're saying that, wait, there are all these offices that were listed, but not president, that seems weird. Why would that be?

What they are essentially saying is, no, no, no, no, wait a minute. They have two categories of people here. One are all officers, and the other are specific public officials who are not officers. And so part of it is every officer. So that would be a person that would be a president, that would be a cabinet official, that would be all officers.

And then there are certain kinds of public officials that quite frankly, no one would really consider to be officers of the United States. And that would be members of the legislative branch, for example. And I thought that was a very interesting approach to say, wait a minute, no,

actually the major provision is all officers. And the addition of these other people is to pull in those few public officials who are not officers. And the addition of these other people is to pull in those few public officials who are not officers. And I thought that was a very interesting approach. So yes, yeah, I don't know that it got me over the line, but it was persuasive. I think it was actually the most persuasive formulation I've read so far. I agree. Here's my look, there's always been the problem that while you don't have to prove motive in, you know, a criminal case, it sure helps if you can.

So why did they exclude the president has been a bit of a sticking point for what I'm going to call my side of the argument. Right. Like, um, they didn't think it mattered. They didn't think it would ever happen. They just didn't think about it. I think those all actually could be very true, but they're not compelling. Super persuasive. Yeah. Yeah. Yes. Right. There's, though, this one problem that is for your side of the ledger, I'm going to call it. And again, we're just sort of putting on these hats for you guys in large part. We could get into a super long, nuanced conversation about where we each actually fall in all of this, which is.

super long, nuanced conversation about where we each actually fall in all of this, which is, okay, but you also have a piece of legislative history that hurts you, which is that the president was included in an initial draft of the amendment, and then they took it out. So I have a motive problem of why they didn't include it. But you have a motive problem of why they took it out. And we don't have a great answer for either of those. I mean, your answer, I think, is, well, they didn't think they needed it, and fewer words is better. Yeah, again, like, I think that's just as likely to be true,

but it's not super compelling. Just like mine, like, I don't know. They just didn't, don't worry about it. Yeah. I mean, you know, yeah, I think that, because again, you know, we also, and when we're talking about Bode, there were debates in contemporary debates where it was stated, yep, absolutely.

They're in it. Oh, yeah. And this was the actual thing that made me like flip out when I read Bode's article is that they had this legislative history where the one guy says, why wouldn't the president be included? And the other senator says, let me point to you to the all other officers provision. And he goes, oh, OK. Yeah, but that's just two guys. The language. I don't know. Yeah. This this one's just messy. And I don't have a great answer. I think both sides have problems in their argument,

which really just tells us this was not the best Lee drafted thing. us this was not the best Lee drafted thing. Wait, wait, Sarah. Are you saying on this advisory opinions podcast that there have been some problems with congressional drafting? I know I and it hurts when it's the 14th Amendment. Yeah, but there we are. OK, I don't want to give again. We have this whole will boat podcast that you can go listen to just on this question.

And it's been transcribed. So we have a link to the whole transcription of it. You can read it. It's 18,000 words. Good luck. And what's so fun about it is at the very beginning, Will Bode comes across as, and by the way, why don't we just call him Will? Why is it we always say Will Bode?

I don't know. Cause it sounds nice and it's short and it's crisp. Yeah. So Will says at the very beginning, he's a man of few words. It's very funny. It's, you know, I ask him because he's kind of a, he's a famous professor and a lot of the rock star professors when, when I was in school always had like a swarm of students around him.

And I said, how big is your swarm? You know, how many students are following you? And he just simply answers, I walk alone. I love that so much. Okay, so I am less interested in the, does January 6th qualify as an insurrection or rebellion? I'm interested in the self-execution part and the evidentiary,

like what is the evidence that you need to have? And the fact that we don't have what that evidence would need to be and all of that, like is it goes into that self-execution argument, I think more than it does an interesting, like how do we define January 6th? But I'm still really, really interested in this. So there's the insurrection or rebellion, there's the engaged in, and there's the or gave aid to the enemies. Yeah. Again, we do talk about that a little in the Bode one too. I think it's, it's messy, but the incitement thing is more interesting to me, David. So I thought we could spend our last few minutes before we get to what we think the Supreme Court will do on incitement.

last few minutes before we get to what we think the Supreme Court will do on incitement. And worth noting, of the three dissents, none of them talk about the officer question, the insurrection question, or the incitement question. So you're flying solo with me on those, if you're with me. So incitement, David, give us your best go., your best go. Okay, so what we have is the Brandenburg standard. So if you're going to accuse somebody of incitement, then you're going to have to overcome the Brandenburg standard. And the standard is pretty simple. Such advocacy, in other words, the words that you're using is directed to inciting or producing eminent lawless action and is likely to incite or produce such action. OK, so since we had the action, since we had the lawless action that actually occurred

in immediate, just immediate proximity with some of Trump's statements, but not all of Trump's statements, then this sort of the eminence, the imminent lawless action prong here is easily met. The question is, was his advocacy likely to incite the lawless action that occurred? And the best argument, I think, that it was likely to incite, and I'll give you sort of my idea of what the best argument, I think, that it was likely to incite, and I'll give you sort of my idea

of what the best and weak, the best argument for and the best argument against very quickly is, look, number one, he summons the mob. Number two, he tells them through an avalanche of lies, reaffirms the message that he's been giving for a very long time, that their country is being stolen, that they have to fight, they have to take it back. We have evidence through Cassidy Hutchison testimony, for example. It has not been confirmed, but we have evidence, sworn testimony, that he knew the crowd was armed. So he knows the crowd is armed. He's telling them the election is stolen. He tells them to fight. He tells them to go to the Capitol. So there is, in my view,

it would be an absolute lay down hand that this is incitement, but for, at one point he says, peacefully and patriotically. So then the question becomes, okay, if you light the stick of dynamite and while it's burning and you hand it to somebody you know is intent on, that you have a lot of reason to believe because you know they're armed, who's intent on menacing others. on menacing others, and you hand them all of the ammunition, you hand them all of the reason, you tell them to fight,

and then at the very end, you kind of have a savings clause of, oh, well, I mean peacefully. Does that one savings clause vitiate and void all that came before it? And then the other thing that I thought was really interesting here was what the Colorado Supreme Court does is emphasizes that once it's all unfolding, so once this thing is underway, Trump doesn't, his initial response is to actually

sort of fuel, is to pour gasoline on by attacking Mike Pence in real time as all of this is unfolding. And so what ends up happening is you have a mob summoned by him, told to go to the Capitol. While the attack is unfolding, he provides additional fuel. And there's actually live real-time video of people screaming about the Trump statement about Pence in the moment.

And so what the Colorado Supreme Court does is essentially say you take all of that and you put it all into context and what you have is incitement. And then even if the initial sort of attack would not meet the standard, well, then his pouring of fuel on the fire when the attack is underway

is further evidence that all of this is unfolding in sort of a classic coup sense. A classic coup construct is you have a, you combine mind and muscle. You have a legal theory and then you have actual violence in support of the legal theory. So for example, the Confederacy had a legal theory about why they had a right to secede, and then they called up the troops. Trump has this whole thing unfolding with the fake electors, and then he sort of calls up his troops. And so I think that that's the argument for incitement. And the question then is, does the statement peacefully and patriotically vitiate all of that? And,

you know, that's sort of my perspective on it, Sarah. But I know you and I have disagreed from the beginning on that. And I, I think I might be missing something because I don't think your argument turns entirely on the peacefully and patriotically statement. No, no, not at all. Yeah. It's irrelevant. Yeah. Give your give your point. By the way, Iically statement. No, it doesn't. No, not at all. Yeah. It's irrelevant. Yeah. Give your point. By the way, I just want to like, can I footnote our insurrection conversation

that, and again, this goes to the difficulty that Justice Chase was pointing out, these sort of pragmatic problems of, yes, Donald Trump wasn't charged with anything. Some other people were. How do we tell the difference between an insurrection and a riot? And is it over the fact that it was at the Capitol?

And what about the people in January 2017 who, you know, were committing violence at Trump's inauguration and burned a lot of buildings, looted, broke stuff, like lots of glass on K Street, et cetera? We consider that a riot, but not an insurrection. I just think this gets really messy as you're asking states to each, all 50, determine their own definition of insurrection when we don't have any guidance from Congress on that. Okay. Incitement. So David, you have made a far more persuasive case against incitement,

sorry, for incitement than I thought the majority did here. In fact, this is one of the few, this is the only area I can think of where reading it was actually unconvincing me of them, of their point. It got me less, it like pushed me away from their point. So first of all, we also talked about the evidentiary problems because of their point. It got me less, it like pushed me away from their point. So first of all, we also talked about the evidentiary problems because of their fast track under state law. They couldn't do a bunch of stuff, which is why it became really important that they simply took the January 6th hearing testimony as their own evidence rather than having to hold their own evidentiary hearing, which again has all sorts of due process problems for me.

But I'm just going to read some sections here. The district court made dozens of findings regarding the general atmosphere of political violence that President Trump created before January 6th. This is on encouraging the use of violence or lawless actions. We incorporate those observations here by reference and supplement them with other illuminating evidence from the record below. For example, the district court found at a February 2016 rally, President Trump told his supporters that in old days, a protester would be carried out on a stretcher and that he would like to punch him in the face. In March 2016, President Trump responded to questions about his supporters' violence by saying it was very, very appropriate and we need a little bit more of it. And during the 2020 election election cycle president trump threatened to deploy the military to minneapolis to shoot looters amid protests over

the police killing of george floyd uh okay so a few problems with that paragraph one the first prong is that the speech explicitly or implicitly encouraged the use of violence or lawless action. So now we're going back to 2016. And by the way, doesn't this actually undermine their point? Right. It can't be eminent if it's 20. This is February 2016. He told supporters that protesters would be carried out on a stretcher and he would like to punch him in the face and then nothing happened. So how is this meeting the incitement prong? And it's from four years ago, and you're saying that this is how we're gonna know?

So yeah, that this is incitement now? Woof. And then their other example is that President Trump threatened to deploy the military. Yes, under law. Like, that's a real problem, that deploying the military is now evidence of a president's

incitement to violence and again david you and i talked about the idea of deploying the military domestically to put down the george floyd protests even violent ones but surely that doesn't provide evidence of incitement so that you lose your first amendment rights. So what, Tom Cotton doesn't have First Amendment rights anymore? He's now inciting because he wrote an op-ed in the New York Times about this? Yeah. That's insane. This paragraph like blew my mind. Okay, so I didn't like that. Yeah, if you're going back to 2016, you're not talking about imminent. You can't be imminent anymore on an event that occurred in 2021. And there wasn't violence, right?

It's actually disproving your point that Donald Trump, when he says these things, knows that there'll be violent action to follow. You're saying he's always said these things and no violent action has followed. What is this section of the majority's opinion? Agree, Sarah. Totally agree. Intent to produce a violent or lawless action. The district court found that before the January 6th rally, President Trump knew that his supporters were angry and prepared to use violence to stop the steal, including physically preventing Vice President Pence from certifying the election.

And the President Trump's response to the events following the speech support that President Trump endorsed and intended the actions of the mob on January 6th. if a normal person said a normal thing and that a crowd took that to mean that they should commit violence and it's not at all what you meant, your reaction to that would be, OMG, stop, don't do that. What can I do to stop this from happening? That's not what I meant them to do. This is really bad.

And that that's not what we saw. And to the extent that later action can be read into intent, like, okay, I'm not going to fight that one too hard. Yeah. Likely to incite or produce eminent lawless action. Hmm. The district court found President Trump retweeted a post

from Kylie Jane Kramer, an organizer of the March for Trump, saying the cavalry is coming. They also found that he used the word fight several times. Sounds like a political rally to me. Again, not persuasive. So, David, I think we have disagreed on this. We do continue to disagree on this because I think the bar for incitement is incredibly high. You know, all the time we have people with all sorts of problems committing violence and they're pointing back to something like the guy who shows up at Justice Kavanaugh's house with zip ties and a crowbar, whatever it was. Well, he didn't get that idea out of nowhere. But the person who said, you know, Senator Schumer, who tweeted

that they will now reap the whirlwind, that was not incitement. Of course, that's protected by the First Amendment. Saying we need to fight against this court is not incitement. The word fight is not incitement. And I agree that Donald Trump is certainly closer to the line than a lot of

other examples. But if this is the best they can do to support that, I am there, man. Why didn't they? They should have sent me an email because I'd have been happy to draft that provision, that section. Look, I agree with you. So, for example, Senator Schumer, you know, the fight language, et cetera, et cetera, that is standard political rhetoric. But if Senator Schumer was standing 200 yards from Kavanaugh's office, he was standing in front of the Supreme Court. He was standing less than 200 yards. Let me go through my hypo. Oh, you don't want me to just scream things at you? OK, no, no, no. You can scream all you want just at the end of the hypo. It's protected by the First Amendment. Sorry. So he's standing there in front of a crowd in front of Kavanaugh's house. And he says it's time for them to reap the whirlwind.

And he knows the crowd is armed and go to his house. That's about as classic sort of the crowd with the pitchforks as you can imagine. And so this is a situation very different from Brandenburg, very different from Brandenburg, where you actually have the mob right in front of you. And you tell the mob that is right in front of you to leave where you are to go to the place. And you know, they're armed. So to me, that's very different from a standard kind of political rally. It's much more like imagine a mob in front of my house and somebody says, you can't save America unless you fight these never Trumpers,

go to his house right in front of my house. That to me is about as textbook incitement as you can get. Here's the problem with incitement in general. So under the Fourth Amendment, for instance, whether a search was reasonable should not depend on whether you found the thing you were looking for, right? I thought the guy had Coke in his trunk, and then I told him to pop the trunk, and it turned out there was Coke in the trunk, so obviously it was a reasonable search. And vice versa. He popped the trunk, and there wasn't Coke, so it wasn't a reasonable search. That's not how the Fourth Amendment works. We actually try to consider the question without knowing what happens in the end, because it should turn on sort of objective questions of was it a reasonable search? Warrantless, reasonable search. You get my point. Incitement's messy that way, right? Chuck Schumer

stood in front of the U.S. Supreme Court, not in his office, not at the Capitol, in front of the U.S. Supreme Court and said they will reap the whirlwind. We need to fight this court, yada, yada. But then nothing happened. You sure you wouldn't think it was incitement if that mob had then gone and broken the windows of the U.S. Supreme Court, enchanted, hang Justice Kavanaugh? I think you might think differently about the incitement question. Well, especially if he had said, and now go enter the Supreme Court now, like go into the Supreme Court.

I mean, like. You're right. He didn't say that part. But same with, you know, like you are actually allowed to enter the Supreme Court. It's I'm not violently disagreeing with you. Oh, no, this is a very peaceful podcast. There's a term I guess. This is a very peaceful podcast.

There's no incitement here in this podcast. And so the fact that Donald Trump had used similar language over and over again, and there hadn't been a violent insurrection, I just, it makes the incitement question so hard in all of these contexts. Because unlike the Fourth Amendment, the incitement question

almost does require that there was violence. I can't think of any case ever where someone's in charge of incitement where the violence didn't result. Right. So it's really hard to then do the like, but what if there hadn't been violence? Would you still think that person's speech had been incitement? That's a yeah, that's a weird part of First Amendment law, in my view. Yeah, you know, as a practical matter, as a practical matter, it's almost as if Brandenburg as read as saying that incitement means advocacy was directed to inciting or producing imminent lawless action and did produce such action. Like that's almost like the practical definition. But the actual definition was it was directed to inciting and was likely to. I've never seen a successful

prosecution on the likely to. I've never even seen one brought that wasn't successful for what that's worth. Right. Okay, that's it for our discussion of the Colorado Supreme Court. Now let's talk about what happens next. The Colorado Supreme Court stayed this decision until January 4th, which isn't a long time away. It's really soon. So two weeks that the Supreme Court, the U.S. Supreme Court has to decide whether to take this case or at least whether to issue its own administrative stay extending that January 4th deadline. I guarantee you, they will do one of those two things. We're not gonna just let January 4th go by

and not have heard anything from the court. So in some sense, that January 4th deadline is irrelevant. Basically, the court has time now to take the case or to issue an administrative stay while they consider whether to take the case. David, I don't think there's much question that the Supreme Court has to take this case. This is, you know, we've talked about why the Supreme Court takes cases.

There's like circuit splits and then there's questions of national legal importance. Here you are like this is all there is. here you are. Like this is all there is. And while there's not a circuit split exactly, you do have the Minnesota court coming out the other way, as well as that Georgia court and to some extent, the North Carolina court.

They're going to take it. So what are the potential ways that a Supreme Court that doesn't want to end self-government in the United States, what are their options? And I want to give some of my thoughts. And then, David, I don't want to give too short a shrift to this part of our discussion, but hopefully there's not actually a whole lot of disagreement here. So y'all are very used to

seeing decisions where we know where every justice came out. We know who wrote the decision and we know the dissents. In that case, what you'd be looking at is they know that they couldn't have a 5-4 or a 6-3. So what are you going to have to do to get Kagan to come over or ideally to get that 9-0? And I'll tell you what's dangling out there. And y'all can be annoyed that we spent too much time on it, but now you're going to be happy because it's like a character who comes back and then you're like, oh, that's why they're there. It's the prosecutorial immunity question. Could you have some horse trading where a couple of the justices say you will get my vote to say that Donald Trump is not immune from criminal prosecution? we're going to all vote together on this question that he can remain on the ballot and that this is a question for voters and not a question for nine of us who weren't elected um that's one way that

you can get to nine zero again we talked about what horse trading is considered gross and disfavored and all sorts of things we also know that it happens sometimes we know um um you know it it would be interesting here It will also be interesting if there's any, especially with the current leaks, if there's any paper trail to be found on this, even after the justices die. Because for this kind of horse trade, I don't know that you ever want someone to know it was a horse trade, ever. So we may never know about that. But let me talk about the second bucket here, which is the bucket I would go with if I were the chief. Percurium, man. We're going to do a PC opinion.

You don't need to sign on to it. It can be 6-3 if you want. Right. 5-4. But we're going to have no noted dissents. So we're not going to know who wrote it. We're not going to know who disagreed or even if anyone disagreed. And we're going to kick this on the narrowest grounds possible, which in this case is probably the self-execution. May Congress do the work?

They could have. They didn't. It's the easy part. And you don't need to get to the officer of the United States. You don't need to get to insurrection. You don't need to get to incitement. David, what say you? So a couple of things. One, it is, I think Colorado, I mean, if I haven't said it explicitly, you've probably understood by context of the whole conversation that I think the Colorado

Supreme Court is correct. Although I agree with you completely that parts of the opinion are not as persuasive as they could be. You think that each state should get to decide this on their own? You really do? No, no, no, no, no. That's not the way this is going to work out. This is the this is more similar to a circuit split, Sarah, than it is to a nationwide injunction. In my view, you can have 11 circuits, 10 circuits, nine circuits who all come out one way. And when one circuit splits,

then we've got a Supreme Court, an issue the Supreme Court's got to resolve. So this is going to be resolved. And so, and the Supreme Court's going to resolve it. So I, at the same time that I'm persuaded by this, knocking this man off the ballot, and I'm emphasizing this man. Because it's it's unique. Knocking this man off the ballot is basically would take.

Will of steel like this would be one of the most not just the most consequential, but in more ways, more immediately explosive than Brown v. Board. Although Brown v. Board was quite explosive over time. I mean, there was bloodshed after Brown v. Board. But this would be immediately explosive. I think it would be the most explosive decision since Brown v. Board, not because of the legal principles involved,

but because of who it's applying to and the nature of the movement that he's built, which is quite frankly insurrectionary. But so the issue here is, is the Supreme Court, are they willing to do this? And there's an enormous amount of argument online about this is ultimately anti-democratic. This is an incredibly anti-democratic decision. Yes, it is. Guess what? It's an anti-democratic section of the amendment. If they trusted the democratic process so that no insurrectionists could be elected, they wouldn't have this in there. So it is intentionally anti-democratic in the way the First Amendment is anti-democratic. This is a constitutional principle that we do not want our republic to elect insurrectionaries. And so it's

extremely anti-democratic, which makes this very, very difficult. But at the same time, it's designed to be anti-democratic. I'm with you, Sarah. I have a hard time. This is where we're going to, after diverging on several things, and we're going to hear come together. I have a hard time. This is where we're going to, after diverging on several things and we're going to hear come together. I have a hard time seeing the Supreme Court knocking Trump off the whether it is due process, I think that's less likely. But one of the ancillary issues feels to me much more likely the way they put together, hopefully, a super majority. I do not want to see this 6-3. I don't want to see this 5-4. A supermajority, I do not want to see this 6-3. I don't want to see this 5-4.

And so what is it that you can achieve? What's the formulation under which you can achieve a supermajority? Now, again, Democrats are jumping up and down and saying, oh, hypocrites, what do you think about Bush v. Gore? 5-4, you know? And look, they got a point. They got a point. I mean, the only reason this is more explosive than Bush v. Gore is because of who Donald Trump is. That's the reason.

I disagree. You think? I disagree as to why. Bush v. Gore was less explosive and still very explosive. I'm not disagreeing. He wasn't explosive. Less explosive because someone had to decide who the next president was going to be. You don't have to remove Donald Trump from the ballot. Well, I well, but here let me put on my Democratic hat, my Democratic Party hat and say, which, by the way, haters, I do not wear. I do not have a Democratic Party hat. Let me put on my fictional Democratic Party hat. Look, yeah, there was a way we're going to decide. And it was called

the recount process that was currently unfolding. And that was going to decide and we're going to abide by the recount process. And the Supreme Court stepped in and blocked the recount process, which is the which is the way we decide elections is through recounts and counts and recounts. And so we were out of time. That was why it was decided December 12th, the day that it was. You're out of time. Yeah. Yeah. No, I agreed with Bush v.

Gore. Like you're preaching to the choir here. But I guess my point is. I would have agreed that the Supreme Court had to make a decision either way, even if they had decided for Al Gore. In this case, I think

you're deciding whether in a close call, do you let voters decide for themselves? Or do you let an unelected state Supreme Court for one state basically decide this then with nine other unelected federal judges? I just there's no way. There's no way. So do you think what what do you think the vote is? Let's take let's hold ourselves accountable here. no way. So do you think, what do you think the vote is? Let's take, let's hold ourselves accountable here. Man, this is a great question, Sarah. By the way, I don't think there's oral argument. I think they do this on papers because they want to lower the temperature here. Having oral argument, I think raises it. I honestly am quite persuaded by your horse trading. I honestly am quite persuaded by your horse trading.

I think in remarkably brief amount of time, I think we may end up with a 7-2 that he's on the ballot on the basis that is not on a non-substantive basis. In other words, they're not going to adjudicate him innocent of insurrection. Sure, sure. In a summary proceeding. And then he's not going to have presidential immunity. And we're going to find out both of those like rapidly.

Yeah, they'll be decided pretty close to one another. Regardless. Yeah. Okay, David, well, I had some thoughts that we might be able to get to some of our other topics today. No, are you kidding me? I had convinced myself last night of it,

so much so that I've got all my tabs open and I've even got my tabs open and I've even got my email draft notes all in the same draft to go through, you know, Judge Willett's utterly bonkers. Judge Newsom's one that you already mentioned, the Ninth Circuit political advertising dissentals. We have some great data on that, on whose dissentals are most effective and least effective. We've got the Mark Meadows removal decision. We have so much. We'll just keep punting, keep punting.

Someone pointed out that it's like the Jimmy Kimmel, Matt Damon bit. Yeah, we've got, and we promise we'll return to abject nerdery soon enough. We really will. We want to. We will, yeah. If there's one thing you know

about this podcast is that we will be nerds. Someone said in the comment section something that I thought was really like the wrongest thing I've ever heard. They said that they think that we cover these newsy topics

about like abortion and Trump because we know it like ups our listeners. And it's just really funny if you think, David, you and I think about like how we started this podcast and basically assumed that like six people, mostly our family would listen to it because we were just going to talk about

the things that we wanted to and like whatever, if people want to listen, great. I think it's why this podcast has become successful is because we don't actually care what you guys want us to talk about. I know that sounds weird,

but it's like, no, it's things we really want to talk about and we find joy doing it. And if you guys want to come, you're welcome to join the party. But like, we don't, you know, we don't take a poll of what appetizers to serve at a party.

It's just always Chick-fil-A nuggets. But, and also, exactly, we always are talking about is what is interesting to us, what we find interesting. But it also, at the same time, if we're a legal podcast and we're not covering the biggest legal stories in the world, then to quote the consultant in the movie Office Space, the classic, what is it you say you do here, David and Sarah?

We deal with the people. All right. Well, David, thank you, as always, for being such an excellent guest on this podcast. And it's such a privilege to join you, Sarah. Bye. Yeah.